Kim McLagan: So Jim, now we’re moving on to our main topic. And I must admit, I’m a bit surprised by this case, and maybe I’ll get your views at the end, but I’ll just talk about the facts of this one. So it’s an unfair dismissal claim. An employee’s health started to deteriorate. He was taking some time off work, then went wholly off work. Put in a Work Cover claim, which was rejected, and that’s important. And then he continued to provide medical certificates. After he’d been off work for a period of 16 months, the employer sent him a show cause letter saying, “We’re thinking about terminating your employment on the basis that you’re unfit for the inherent requirements of your role,” and they invited him to a show cause meeting.
So followed the correct process, did the show cause meeting, or advised him what their decision thinking process was. Invited him to the show cause meeting. At the meeting he said, “I’m doing better,” but otherwise didn’t address anything that had been set out in the show cause meeting. Now the difference with this case, and very different to anything that you and I do when we carry out these terminations ’cause someone’s unfit for the inherent requirements is the employer only relied on the medical certificates. And they gave the employee the opportunity to provide any further medical evidence that he wanted to provide.
Jim Babalis: Yeah.
Kim McLagan: He argued at the hearing that they didn’t obtain an independent medical examination report or any medical evidence from his treating practitioners, and therefore they lacked the evidentiary basis to properly terminate his employment. Now, the judge or the commissioner agreed with the employer that they were not obliged to get that further medical evidence, and the employee hadn’t taken them up on the opportunity to provide further medical evidence in support of his own position, that if he wanted to argue that he could return to work in the foreseeable future and perform the inherent requirements of his role.
I’ve got a bit of an issue with this. The fact that it’s an unfair dismissal hearing case may have let the employer off the hook in this case. Certainly in Victoria, there’s a provision in our legislation here, section 588, that an employer cannot rely on any information from the Work Cover claim for any purpose other than the Work Cover claim, which prevents an employer in Victoria relying on certificates of capacity as evidence of an employee’s being unfit to work. So, and whenever clients come to us and say, “We want to terminate someone,” our first step is to say, right, where do we get the medical evidence from to satisfy the legal test?
Jim Babalis: Yeah.
Kim McLagan: They are unfit for the inherent requirements of their role now and in the foreseeable future, and there are no reasonable adjustments that can be made that would allow them to come and do their role. That test must be supported by medical evidence, and I would never, ever just rely on a medical certificate for that. But in this case, the judge or the commission said it was okay because the employee was given the opportunity to provide his own medical evidence and didn’t. I think if this had a gone before a commission and a general protections hearing, it would’ve been a very different outcome. What do you think?
Jim Babalis: Kim, I completely agree with you. Listen, I think it’d be a very rare instance, and it only would apply if there was no Work Cover claim where medical certificates, unless they’re very comprehensive, could be accepted.
Kim McLagan: Yeah.
Jim Babalis: I think though my professional view has always been probably, and aligns with yourself, that an employer will still run the risk of relying on, I guess if we call it this, to some extent, quite basic medical information.
Kim McLagan: Yeah.
Jim Babalis: And realistically, there’s a lot of doctor shopping going around. Some doctors are not consulting long enough to really address what the employer really wants. So when an employee’s providing a medical certificate, sometimes it’s very bare, basic information.
Kim McLagan: Yeah.
Jim Babalis: I think my view aligns with you that when you’re looking at a bare, basic minimum requirement, a medical report is a must. Now, I think the lowest threshold should be at least some type of comprehensive report from a GP.
Kim McLagan: Yeah.
Jim Babalis: But that’s actually placing it on the very low threshold.
Kim McLagan: Yeah. Right.
Jim Babalis: I think any other instance should be an IME, particularly from the appropriate specialist.
Kim McLagan: Yeah.
Jim Babalis: I think an employee does run the risk, particularly in a general protections matter.
Kim McLagan: Exactly.
Jim Babalis: It doesn’t matter the jurisdiction, I think, of, you know, some adverse findings there. So, I think my personal view on this case-
Kim McLagan: Yeah.
Jim Babalis: There’s obviously a lot of other factors that were considered, and probably the employer-
Kim McLagan: I think they got lucky.
Jim Babalis: Got lucky, but it’s not going to happen again.
Kim McLagan: Okay, so now we’re moving on to the case study.
Jim Babalis: So this is a case study, and obviously I’ll read out the issues, and we’ll get to some questions shortly. But Gonzo had struggled with his boss, Camilla. He felt that she was intrusive and always making trouble for him, and she, in turn, struggled with managing him. Over the past few years, Gonzo had attended doctor’s appointments during work hours, and worked from home due to issues involving his children at school and their mental health.
However, there was no doubt that he had become less productive and that the quality of his work had declined. Camilla reminded Gonzo that the working from home rules were set out in the company policy, and that he was required to be in the office for three, four days each week. She also explained that if he wished to attend appointments during working hours, he needed to submit leave applications and notify her in advance. Despite this, Gonzo continued to act outside the policy without repercussions. He later raised a complaint with HR regarding his need for flexible work, explaining his children’s issues, and alleging that Camilla was insensitive. Camilla decided to reset the relationship with Gonzo.
She held a counselling session with him, explained that any flexible work arrangement required a formal request, and made it clear that she would no longer tolerate breaches of the policy itself or the leave policy relating to medical appointments. Gonzo began to cry. He was struggling with depression and anxiety, and the burden of caring for two mentally unwell children as a single parent was unbearable. Camilla adopted an empathetic approach, offered access to EAP, and asked what adjustments he needed at work.
Gonzo responded, “Just leave me alone and let me work the way I am.” The next day at 9:35 AM, one hour and 15 minutes after his start time, Gonzo emailed to say that he needed to work from home to care for his eldest son, and that he would be taking him to the doctors at 2:00 PM. Camilla replied advising that this was not a proper basis for working from home, and that he should instead take personal leave, as he would be attending a medical appointment. Gonzo replied, quote, I’m not going to go into that.
Kim McLagan: No.
Jim Babalis: Expletive and insensitive whatever, expletive. Gonzo then sent a notice arranging an immediate show cause meeting for the following day based on his response. A police investigation later revealed that after receiving the show cause notice by email, Gonzo drank several long bottleneck beers. Oh, sorry, long-neck beer, sorry. And attempted the drive to the pub to purchase more alcohol. He fatally crashed along the way.
Kim McLagan: Oh.
Jim Babalis: Oh.
Kim McLagan: Poor Gonzo. Andrew always puts in a swear word ’cause he loves to hear me swear on these things-
Jim Babalis: Oh, yeah.
Kim McLagan: But anyway.
Jim Babalis: I left the swearing out.
Kim McLagan: Yeah, thank you.
Jim Babalis: So just a couple of questions there. So I’ll start with the first question, Kim, if that’s okay.
Kim McLagan: Sure.
Jim Babalis: Did Gonzo make a flexible work request in accordance with the Fair Work Act?
Kim McLagan: No, he did not. The provision of the act says it must be in writing, and he didn’t do that. So that’s quite a simple answer to a straightforward question. Next one, not so simple.
Jim Babalis: Thank you for that one. That was easy. Did Camilla discriminate against Gonzo, or breach general protections obligation if he still were alive though?
Kim McLagan: Okay, so while Camilla treated Gonzo differently, her directions were lawful, even though she was very insensitive, so therefore a discrimination claim is unlikely. However, she did change a pattern of condoned behavior, which had been permitted over a long period of time, and so arguably he could argue that that was now a term of his contract of employment.
Jim Babalis: Yep.
Kim McLagan: Because that had been allowed, and we’ve got cosmos unconscious that Andrew often talks about as a authority for that. He was also treated differently after he made a complaint about her conduct and about her being insensitive, and so that may enliven a general protections claim for Gonzo.
Jim Babalis: Thank you for that. Could Gonzo have successfully brought a workers’ compensation claim based on Camilla’s treatment of him?
Kim McLagan: Yes, again, if he was alive, naturally. He would have a psych claim, and they would not be able to argue reasonable management action because she wasn’t behaving reasonably by changing everything that had been allowed to continue for many years.
Jim Babalis: Yeah.
Kim McLagan: And also given his personal circumstances.
Jim Babalis: Yeah, no, no, clearly I would agree with that one. And lastly, was this a breach of safety law?
Kim McLagan: Okay, so there was unquestionably a breach of safety law relating to psychological hazards. Potentially Gonzo own wrongdoing may weigh against a prosecution, but there was a clear breach of the primary duties. Workplace manslaughter may have been open as well for a prosecution. Death doesn’t have to occur on site. In this case, it occurred on site. But also for a, I should just say for a psychological hazards breach, there doesn’t have to be an injury, so I should have said that earlier as well.
Jim Babalis: Yep.
Kim McLagan: Yeah, so workplace manslaughter may technically be open, as the legislation can recognize, or recognizes that the death can occur offsite. And even though Camilla’s conduct may have been quite insensitive and unfeeling, it doesn’t reach the threshold of lacking in reasonable care as to warrant a workplace manslaughter charge.
Jim Babalis: Yep.
Kim McLagan: So there you go. All right, our first one.
Jim Babalis: Perfect. Thank you that.
Kim McLagan: Well done Jim.
Jim Babalis: Thank you.
Kim McLagan: We might have to try and keep them a bit briefer next time, but that was fun. I hope you enjoyed it, everyone. Thumbs up.
Jim Babalis: Thank you.
